Cooperation?

I trust most of us had a fine time welcoming the new year. I hope the explosion of legal fireworks and the din from reunion parties drowned out the noise that pollutes our personal and professional lives, even for a day. On the national front, the revelry afforded us a fleeting respite from the divisive politicking of the usual suspects.

But since we are in the Philippines, 2024 means another crazy chapter on the battlefield of local politics. A case in point is the alleged ongoing cooperation between the Marcos government and the International Criminal Court (ICC) Prosecutor, which has resumed its preliminary investigation on the Philippine War on Drugs from 2011-2019. In the interim, both former president Rodrigo Duterte and current Vice President Sara Duterte alternately served as Davao City mayor. Digong was our chief executive from 2016 until 2022.

My Malacañang source informed me that within the month, the government will release a statement denying any cooperation between the Marcos administration and the ICC Prosecutor concerning the drug war campaign investigation. Supposedly, President Bongbong Marcos Jr. will belie reports that he had favorably responded to the ICC’s request for full cooperation. I hope PBBM will also refute rumors that he got triggered by a baseless destabilization story involving FPRRD and several retired military generals. It will also prove that his policymaking approach, particularly in foreign relations, rests on hard evidence, not mere hearsay. In so doing, he will clear the air and address the widening rift between his administration and the Dutertes.

On the other hand, some colleagues in the legal profession have been telling me that ICC lawyers have been coming in and out of the country to meet with the families or representatives of alleged victims of extralegal killings. Without constraints, these legal counsels have been interviewing the witnesses and coaching them on presenting their affidavits to sustain the determination of probable cause.

Of course, central to the investigation would be the Duterte family, whom the representatives of the victims have linked to crimes against humanity. I am afraid that Senators Bato Dela Rosa and Bong Go, who served under the Duterte administration, might also become the subject of the ICC probe.

Antagonizing the Dutertes

So, who is afraid of the Duterte father and daughter? Not the officialdom of the House of Representatives, obviously. Nor certain powers that be in the Executive branch. They are unfazed by a recent poll result that showed Digong as a possible topnotcher in the 2025 senatorial race. In a Publicus Asia survey, FPRRD got a 48 percent voting predisposition and a 59 percent trust rating from the respondents. Meanwhile, VP Sara is statistically tied with Senator Erwin Tulfo as the leading presidential candidate for 2028, according to a Tangere survey conducted in November (UNTV).

Before the Christmas break, the House justice and human rights committees unanimously adopted a resolution urging the government to cooperate with the ICC on the drug war investigation. The committees are coordinating with Senator Risa Hontiveros, who filed a similar resolution in the Senate (ABS-CBN). Unfortunately, the supposed allies of Inday Sara in the now fractious UniTeam Alliance have apparently joined hands with the Opposition and Leftist politicians in undermining the VP’s mandate as an elected official and integrity as a public servant. They do not seem to care if they appear as attack dogs or function as chess pieces for politicos/parties eyeing the presidency in 2028. The ultimate objective is clear: systematically destroy the public trust and confidence in VP Sara and FPRRD. And remove Inday from power through constitutional or legal methods. After their impeachment moves against Sara failed, they are now going the ICC route to have her (and Digong) probed and eventually prosecuted. They can only achieve this if they successfully convince the government to cooperate with the Court.

Under Article 86, the Statute obligates every State Party to cooperate fully in investigating and prosecuting crimes under the Court’s jurisdiction. Officially, the Philippines became a non-member on March 17, 2019, a year after it deposited a written notification of withdrawal.

In my view, the Court lost its jurisdiction over the case since the Pre-Trial Chamber (PTC)-approved preliminary investigation commenced two years after the country left the ICC. It can only investigate and prosecute alleged crimes against humanity of murder that took place in Philippine territory while we are still a Party to the Statute. The Court Prosecutor should have taken a leaf from the Burundi case and begun its drug war probe before the Philippine withdrawal took effect in 2019. Burundi is still under obligation to cooperate with the Court since the Prosecutor conducted a preliminary investigation before the East African nation’s official withdrawal in 2017.

Supporting the Tribunal

The Appeals Chamber, which rejected the Philippine appeal to stop drug war campaign investigation, noted that the country brought a concrete challenge to the ICC jurisdiction. The judges who dissented with the majority opined that the “PTC erred in law in concluding that the Court had jurisdiction over the Philippine Situation despite the Philippines’ withdrawal from the Rome Statute.”

By its reckoning, the ICC is a handicapped international tribunal. Given its lack of manpower such as process servers and absence of a police force, the intergovernmental organization must get the support of both State Parties and Non-State Parties to arrest individuals, transfer suspects to the ICC detention center, freeze the assets of suspects and enforce sentences.

The ICC will have to rely on competent authorities in the Philippines like the Department of Foreign Affairs (DFA) and Department of Justice (DOJ). In particular, the Court needs the DOJ for the service of summons for the witnesses and subpoena ad testificandum (a writ compelling an individual to give testimony or submit physical evidence and pertinent documents before a trial court).

Once the ICC determines probable cause and issues warrants of arrest against the accused, the DOJ can request the Philippine National Police (PNP), National Bureau of Investigation (NBI) and even the Armed Forces of the Philippines (AFP) to make arrests. Can you imagine our law enforcers and military officers apprehending our former president and current VP for possible detention in The Hague while awaiting trial? If this happens, there will be trouble and mayhem across the archipelago, to paraphrase presidential sister, Senator Imee Marcos.